Justice and the New Black Panthers

Christopher Coates has been the U.S. Commission on Civil Rights’ most-wanted man. Last Friday, the commission finally got him. Bravely defying an order of the Department of Justice, Coates appeared before the commission to testify on the New Black Panther Party case, which has provoked such interest–at first only in the conservative media, but now, after his testimony, with a front-page, above-the-fold story in the Washington Post.

A former chief of the voting section in DOJ’s Civil Rights Division, Coates had inside knowledge that the commission was eager to hear. It was seeking an answer to a core question in the case: Why did the Justice Department decide it sufficed to obtain an injunction against only one Panther–King Samir Shabazz, the man with the nightstick? The injunction forbids Shabazz to display a weapon within 100 feet of an open polling place on any election day in Philadelphia–but only until November 15, 2012. And no penalty was imposed on his companion, Jerry Jackson, or on the organization itself.

Coates delivered a simple message: The Obama Justice Department is not interested in aggressively pursuing cases in which the defendants are black. The department, Coates said, believes the Voting Rights Act protects black, but not white, voting rights.

Racial double standards at the Justice Department: shocking news. Or is it?

It certainly should be. But in fact, if racial double standards indeed drove DOJ’s decision to substantially drop the case against the New Black Panther Party, as Coates asserted, the department was simply taking one more step along a sad road we have long been traveling.

The authors of this article have both made our careers opposing racial preferences–in education, hiring, contracting, and voting rights. And federal law–and, in many places, state and local law, too–is rife with them. Race-conscious provisions appear to be programmed into the computers of most of the Hill staffers who craft legislation; the judiciary has long borne much of the blame; and federal bureaucrats in this area have never been colorblind.

Most Americans probably believe that the Voting Rights Act has provided equal protection for minority and white voters alike. Would that it were so! Alas, the historical story does not fit that pattern: We are stuck with, instead, the evolution of the statute from a pure anti-discrimination law to one that has become an instrument for affirmative action.

Beginning in the 1970s, blacks came to be treated as politically different–entitled to inequality in the form of a unique political privilege. “Majority-minority” legislative districts that ensure the election of black (and, after 1975, Hispanic) candidates became a federal mandate. These districts, which Justice Sandra Day O’Connor called “segregated,” protect minority voters’ “candidates of choice” from electoral defeat, giving these voters a sheltered status enjoyed by members of no other groups.

A sheltered status for minorities is of course what all affirmative-action policies provide–not just in voting, but in contracting and employment and education, too.

For the most part, the Supreme Court has signed onto that understanding of the Voting Rights Act, in particular. For a while, in a few cases, it flirted with abandoning its commitment to what the ACLU had called “max-black” districting, but the limits to its willingness to do so were apparent in a 2006 decision involving Texas congressional redistricting.

That same year, on the assumption that today’s more “subtle” forms of white racism required ever more aggressive countermeasures, Congress revised a crucial provision in the statute to ramp up the race-conscious legal standards that were built into the law beginning in the 1970s. Given a chance to recognize an altered racial climate by changing the statutory language, it took a pass and instead made sure DOJ would unequivocally insist on race-driven districting maps, overturning court decisions that would have limited DOJ’s power to insist on racial gerrymandering.

Thus, the Voting Rights Act has, in fact, become a statute whose key provisions are used to protect only minority voters. Indeed, only once has any provision of it been used to suggest otherwise–and only in a lower court. The act and its enforcement have become suffused with race consciousness.

With the New Black Panther Party case, there is now another new element. The racial double standards that run through redistricting decisions have now been extended to a voter-intimidation case. But that only makes a larger point: When statutes, judicial decisions, and a bureaucracy are all steeped in a race-conscious culture, inevitably that culture comes to govern decision making in new race-related areas. It is a metastasizing cancer.

If the Holder Justice Department came to believe–as some black politicians and many voting-rights scholars on both the Left and the Right do–that America has changed and race-conscious strategies built into voting-rights law have become an anachronistic holdover from a bygone era, it can make its views clear. We strongly doubt it will do so, however, given the ideological background of the people who have been appointed to run the department and the division.

Congress, too, could step up to the plate. In an important 2009 decision, Chief Justice John Roberts strongly hinted on behalf of the court that it was time to revise the statute. But congressional action is unlikely. How many politicians will cheerfully risk being accused of turning the racial clock back–of racism, in effect?

And so we are left with the hope that the Supreme Court will finally reject the unequal protection that has long been built into voting-rights law. Two cases challenging the constitutionality of a key element in the statute have recently been filed, and down the road the Justice Department may be forced to treat white and minority voters equally.

Oh, there is one more hope: Elections have consequences, and politicians will listen to voters if they speak loudly enough. Most Americans are appalled not only by the notion of unequal enforcement of voter-intimidation cases, but by the whole politically correct edifice of affirmative action and racial preferences that has been constructed over the years. It should never have been built, and, surely, it is long past time to begin tearing it down.

Abigail Thernstrom is an adjunct scholar at AEI. Roger Clegg is vice president and general counsel at the Center for Equal Opportunity.